UpdateLegal Issues

In

Workplace Drug Testing

State Law CompliancePresented by

William J. Judge, JD, LLMFightReady, LLC

2013

Overview

36 years later

What have we learned?

Compliance Opportunity

What do we mean?

What are the RISKS of non-compliance?

VOLUNTARY STATES

AlabamaMississippi

ArizonaOhio

Arkansas S. Carolina

FloridaTennessee

GeorgiaVirginia

Idaho W. Virginia

KentuckyWyoming

** Alaska

MANDATORY STATES

Alaska Montana

CaliforniaNebraska

ConnecticutNevada

Hawaii New Jersey

IowaNew York

KansasNorth Carolina

LouisianaOklahoma

MaineOregon

MarylandPuerto Rico

MassachusettsRhode Island

MinnesotaUtah

Vermont

___________San Francisco & Boulder, CO limit who can be tested.

State Requirements/Limits

Some states:

- limit random - require an MRO

- limit discipline - require following fed rules

- Define specimen - define “accident”

- Prohibit “viewed” - Prohibit post-accident test

collection- Make adulteration a crime- Have different alcohol cutoffs

Risks of non-Compliance:

Legal Framework

Today’s Hot Issues

1. Medical Marijuana/Legalization2. ADA Amendments3. Rx Medications

MEDICAL MARIJUANALEGAL ISSUES IN THE WORKPLACE

Current Legal FrameworkState Action

FEDERAL LAW . . .

Medical use of marijuana remains illegal. DOT position. Justice Department position.

Current Legal FrameworkState Action

Currently Permitted In 18 states and Wash. DC … AK MT

MA (11/06/12) AZ NV CA NJ

Soon 2 more: CO NM -

IL awaiting Gov. signature CT OR -

NH just compromised. DE RI HI VT ME WA MI WDC

Legalization – Personal Use

CO

WA

Opiates @ Work

Is there an Opiate/Pain Rx Problem?

CDC1 – “the fastest growing drug problem in America” 3 in 4 prescription overdosed are due to Rx/opiate pain

killers. 300% increase in pain Rx overdose deaths since 1999. 14,800 deaths attributed to opiates, more than cocaine

and heroin combined. > 475,000 emergency room visits in 2009 – double that

just 6 years earlier.

ACOEM2 - Use of opiate med’s increase “catastrophic claims” by 4x.

1. http://www.cdc.gov/homeandrecreationalsafety/rxbrief/2. Journal of Occupational and Environmental Medicine, August 2012.

The ADAAA

1. Drugs Permitted to test for – HHS-5(6)-- Amphetamines-- Cocaine-- Marijuana-- Opiates-- PCP

(Ecstasy)2. Reporting Prescriptions

Work Comp Claims

Intoxication Defensean

Unused Tool

We MUSTChange the Way We

Think!

The Problem: Drugs and Alcohol in the WorkplaceIn 2010 workers compensation insurance covered more than 131 million U.S. workers at a total cost of $85 billion to employers

September 2011 Society for Human Resource Management (SHRM) survey found the number of employers reporting high WC incidence rates prior to drug testing programs decreased by approximately 50% after introducing drug testing

Drug testing has been found to:

a) Reduce claims as much as 12%

b) Reduce first aide injury reports 18%

c) Reduce accidents 51%

d) Reduce Experience Mod Rates as much as 11.41%

66.0% of current, admitted drug users

ARE EMPLOYED!

To win, you typically must show:

1. Intoxication2. Cause

4 States have

Presumption of Intoxication

Alabama

Arkansas

Texas

Virginia

14 States have BOTH

Presumption of Intoxication and Cause

Colorado Florida

Georgia Illinois

Kansas Louisiana

Missouri Nevada

N Dakota Ohio

Oklahoma Tennessee

Utah Virginia

24

4 States Provide a “Reduction”

In Benefits if there’s a positive test

Colorado 50%

Missouri 50%*

New Mexico 10%

Wisconsin 15%

* Under certain circumstances may also completely deny benefits

Other States of Note

Alaska, New Jersey and New York assumes that the worker was NOT intoxicated.

To take advantage of this opportunity you must be in compliance.

POLICY

What Rules Apply?

Policy Development

State Laws

Federal Rules

Unions

XYZ, IncCustomer Requirements

Compliance Opportunity

Bill Judge708-334-8010

bjudge@fightreadynow.comItasca, IL